Saturday, April 3, 2010

Appellant’s Opening Brief to Arizona State Court Of Appeals Div 2. Seeking Prospective Relief to Protect the Purity of Future Election Results?


PIMA COUNTY COMMITTEE OF          NO. 2 CA-CV 2010-0001
               Pima County Superior                      PARTY, INC.,                                           Court Cause No.


BETH FORD, in her official capacity
as Pima County Treasurer,



Republican Party of Pima County, a
political organization; Pima County, a
political subdivision of the State of
Arizona, by and through its Board of
Supervisors and County Administrator;
and Regional Transportation Authority,
an Arizona special taxing district,


State Bar Number 003890
Pima County Bar Number 16496
117 West Washington Street
Tucson, Arizona 85701-1011
Telephone: (520) 882-2100
Facsimile: (520) 882-2026

Table of Contents
Table of Citations. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .  ii
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . 5
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

          A.      The Trial Court Erred in Granting Pima County’s 
                    Motion to Dismiss the Second Amended Cross-Claim 
                    for Failure to State a Claim On Which Relief Can 
                    Be Granted. 
                     1.    Standard of Review. 
                     2.    The Trial Court Has Equitable Jurisdiction To 
                             Protect the Purity of Elections. 
                     3.    An Impossible Remedy Can Never Be An 
                            Adequate Remedy. 
          B.      The Trial Court Erred By Not Permitting the Citation 
                    of Additional Constitutional Authority Because They 
                    Weren’t “New” and Could Have Been Found Earlier. 
          C.      The Violation of Criminal Laws Is an Argument 
                    Favoring Jurisdiction, Not a Fact that Defeats 

Request for Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . 26
Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28       
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . 29
Table of Citations (Link to Cases)

Statutes and Rules

A.R.S. §12-2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A.R.S. §12-2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A.R.S. §16-100-102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
A.R.S.§ 16-624. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 2
A.R.S. § 16-671. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 16
A.R.S. §16-673 . . . . . . . . . . . . . . . . . . . . . . . 13, 16, 18, 21
A.R.S. §16-1010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
A.R.S. §12-2021 relating to mandamus or A.R.S. §12-2001.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
A.R.S. §12-2101(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Ariz.R.Civ.P. 12(b)(1), (6) and (7) .. . . . . . . . . . . . . . . . . . . 2
Ariz.R.Civ.App.P., Rule 17.. . . . . . . . . . . . . . . . . . . . . . . . 22
Ariz. E.R. 3.3 Candor Toward the Tribunal. . . . . . . . . . . . ..23

Arizona Constitution

Art. 2 § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6
Article 2 §§ 2, 3, 21, and 33 . . . . . . . . . . . . . . . . . . .2, 6, 20
Art. 6 § 14 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Art. 7 § 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Art. 7 §12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 20 

United States Constitution
Articles 1 and 4 and Articles IV §4 . . . . . . . . . . . . . . . . . ..2
Art. I §4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 

Statement of the Case
P  1.           Plaintiff / Appellee Beth Ford, Pima County Treasurer, filed a declaratory judgment complaint on July 22, 2008, requesting the court to declare whether, and if so, for how long, she was obligated by A.R.S. §16-624 to retain Pima County  Ballots for the May 16, 2006, Special Election. (Referred to herein as the “Special Election” (“C.I.”) 2)

P  2.          The defendants in that action included the three recognized political parties in Pima County, the Pima County Board of Supervisors, and the Regional Transportation Authority. The Pima County Committee of the Libertarian Party, Incorporated, (“Libertarian Party”) filed an answer and “cross-claim” requesting the Superior Court to conduct a hearing where they would present evidence that the RTA election ballots had been “tampered with” and fixed” by the county election computer operator. C.I. 36. The Libertarian Party requested injunctive relief to prevent election rigging in the future. The Pima County Democratic Party joined in the Second Amended Cross-Claim of the Libertarian Party. C.I.40. . . .

P  3.       The defendants Pima County, Beth Ford as Pima County Treasurer, and the Republican Party of Pima County, each filed or joined in motions to dismiss or for judgment on the pleadings pursuant to Ariz.R.Civ.P. 12(b)(1), (6) and (7). C.I. 46, 47. The Pima County Superior Court ruled on January 27, 2009, that the crossclaim failed to state a claim on which relief could be granted. C.I. 64. Following transfer of the case to the court of appeals and its return to the superior court, the trial court entered its amended judgment on October 20, 2009, that incorporated the prior Under Advisement Ruling of January 27, 2009. C.I. 117.

P  4.          The Libertarian Party filed a timely notice of appeal from both the ruling of January 27, 2009, and the amended judgment on November 17, 2009.

P  5.           This court has jurisdiction over this appeal pursuant to A.R.S. §12-2101(B). 

Statement of Facts
 P  6.          The initial declaratory judgment action filed by Beth Ford, the Pima County Treasurer, sought a judge’s declaration whether she was required to destroy ballots from the Special Election of May 16, 2006, pursuant to A.R.S. §16-624. C.I. 2.

P  7.        The Libertarian Party filed a “cross-claim” that should have been labeled as a counterclaim and was treated as such by the trial court, and will be referred to in this brief as a counterclaim. The “counterclaim” alleged that the proper, fair, and accurate recording of ballots cast in elections is a fundamental duty of government under our respective state and federal constitutions. Article 2 §§ 2, 3, 21, and 33 of the Constitution of the State of Arizona and Articles 1 and 4 and Articles IV §4 of the Constitution of the United States. The counterclaim alleged that “there is substantial evidence of tampering by Pima County elections employees with the ballots cast in the 2006 Special Election.” C.I. 36. Attached to the counterclaim was an affidavit of Zbigniew Osmolski that he had been personally told by the Pima County computer operator that he had “fixed” the Special Election “on the instruction of his bosses, and he did what he was told to do.” C.I. 36.

P  8.          The counterclaim requested the court to grant the Libertarian Party access to the ballots, conduct a hearing on the issue of tampering, and to grant the prospective relief of an appropriate injunction to prevent a re-occurrence.

P  9.          At the January 13, 2009, hearing, Pima County, Beth Ford as Pima County Treasurer, and the Republican Party, argued that the Superior Court had no subject matter jurisdiction to consider election fraud even if it was an agreed upon fact that the election results were fraudulent for purposes of a Rule 12 motion. C.I. 61 (p. 10, 17). Although neither the Libertarian Party nor the Democratic Party was contesting the results of the particular election and sought only prospective relief, the county argued that our courts have no jurisdiction to consider any election fraud issues except for a specific election contest pursuant to A.R.S. §16-671, et. seq. A specific election contest must be filed within five (5) days after completion of the canvass of the election and allege “the particular grounds of the contest” which would prove that the outcome of the election would have been different.

P 10.        The Libertarian Party, through its co-defendant Democratic Party, filed extensive documentation that an election contest for a computerized election is impossible as a practical matter in Arizona. Theodore “Ted” Downing, the chairman of the Arizona State Democratic Party Election Integrity Committee, in a declaration, noted that his state party had requested twelve Arizona counties to send the party a copy of their electronic database for the general election of November 4, 2008. Only six counties responded to the request at all and none responded within five days of the canvass. C.I. 66 (Ex. A).

P 11.         Declarations from computer experts Dr. Thomas W. Ryan, Ph.D. (C.I. 66,  Ex. 5), Michael A. Duniho (C.I. 66, Ex. 6) and David R. Jefferson, Ph.D. (C.I. 66, Ex. 3) each stated that computers were easy to rig and would be unlikely, if not impossible, to provide evidence sufficient to challenge an election within a five day period.

P 12.          During a prior “database lawsuit” between the Democratic Party of Pima County and the Board of Supervisors, Cause No. C20072073, the county’s defense was based upon the lack of security in the databases produced by GEMS (the election computer software). That lawsuit took around one and one-half years for the Democratic Party to obtain Pima County’s election database. Christopher Straub, Pima County’s attorney, admitted that “the databases themselves are not secured. We know that and we agree that they can be altered using Microsoft Access.” C.I. 60 (p. 3).

P 13.         A Source Code Review of the Diebold Voting System prepared by the University of California, Berkeley, under contract to the California Secretary of State as part of a “Top-to-Bottom” review of electronic voting systems for use in the State of California was provided to the trial court. C.I. 60 (Ex. 4). That review extensively reported on the vulnerabilities and unreliability of the Diebold system used in Pima County.

P 14.         Arizona’s election director, Joseph Kanefield, testified in the database case that the fundamental security flaws that make the GEMS data impossible to validate were “known by not only our office but election officers all over the country.” C.I. 60 (p. 2).

P 15.         The Libertarian Party argued that no election could ever be challenged and because of the systemic problem that permitted repeated election rigging, the court needed to accept jurisdiction and provide prospective relief in order to protect the purity of future elections. C.I. 61 (25:16-20, 27:2-9, 21-23, 30:13-17).  

Issues Presented for Review
P 16.        1.    When the Superior Court is presented with evidence that election results may have been tampered with, does the  court have equitable jurisdiction to fashion prospective relief to protect the purity of future election results?

P 17.        2.    Did the Superior Court err in concluding that equitable relief was barred by a statutory remedy impossible to use because of time limitations and where Appellant was not  seeking to contest the election results?

P 18          3.    Did the Superior Court err in striking Plaintiff Democratic Party’s supplemental constitutional citations, tendered before argument, on the basis that the citations could have been discovered earlier?  

P 19.      A.        The Trial Court Erred in Granting Pima County’s 
                           Motion to Dismiss the Second Amended 
                          Cross-Claim for Failure to State a Claim On Which 
                          Relief Can Be Granted. 
                          1.      Standard of Review.

P 20.      This Court conducts de novo review of orders dismissing complaints. Fairway Contractors, Inc. v. Ahern, 193 Ariz. 122, 124, 970 P.2d 954, 956 (App. 1998).

P 21.          In reviewing the dismissal for failure to state a claim, all material allegations of the claim are taken as true and read in the light most favorable to the claimant. Logan v. Forever Living Products International, Inc., 203 Ariz. 191, 52 P.3d 760 (2002). A dismissal motion should not be granted unless it appears that the claimant would not be entitled to relief under any state of facts susceptible of proof under the pleadings. Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 922 P.2d 308 (1996).
                        2.     The Trial Court Has Equitable Jurisdiction To 
                                 Protect the Purity of Elections.

P 22.       Art. 6 § 14 of the Arizona Constitution concerns the superior court's original jurisdiction:

                                Section 14. The superior court shall have original
                jurisdiction of:
                                1. Cases and proceedings in which exclusive
                jurisdiction is not vested by law in another court.

P 23.            No other court has been vested by law with such jurisdiction in election cases. Hence, the jurisdiction must be in the superior court.

P 24.         Arizona long ago abolished the distinction between courts of law and courts of equity. Manor v. Stevens, 61 Ariz. 511, 152 P.2d 133 (1944). The superior court has full original jurisdiction for both. The function of equity jurisdiction is exemplified by the facts in this case.

P 25.       It is recognized that the foundation of all our rights is based upon the democratic process of voting. In Arizona, the object of the election laws is to prevent fraud and to guarantee to the voter the count of his ballot. Averyt v. Williams, (Ariz. Terr. 1904) 8 Ariz. 355, 76 P. 463. The Arizona Constitution which was written after that Territorial decision contains several relevant sections.

P 26.          The wording of that section merits a special notation. The phrase “elections held by the people” refers to the fact that it is the people who hold elections and not the government. The government surely has its role, and the legislature sets out rules, but all of those are for the purpose of facilitating the people in holding elections.


P 27.      The incomplete nature of the circumstances covered by our election statutes is precisely the area in which equity jurisdiction functions. The Arizona Supreme Court has said that courts are free to fashion a remedy whenever circumstances and equity require. Murdock-Bryant Construction, Inc. v. Pearson, 146 Ariz. 48, 53, 703 P.2d 1197, 1202 (1985) (citing D. Dobbs, Remedies § 4.2 at 239)

P 27.         Our Supreme Court in Sanders v. Folsom, 104 Ariz. 283, 451 P.2d 612 (1969) noted several equitable principles deserving repetition.

P 28.           The Sanders v. Folsom court also at p. 289 emphasized the importance of the public interest.
                                            Courts of equity may, and frequently do, go  
                                      much farther both to give and withhold relief in  
                                      furtherance of the public interest than they are  
                                      accustomed to go when only private interests 
                                      are involved.

P 29.           It is difficult to conceive of a higher public interest than to prevent fraudulent election rigging by the election department itself.

P 30.          The question of this court’s subject matter jurisdiction was directly dealt with in Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131 (1936), a case concerning the court’s subject matter jurisdiction in the contest of an initiative measure. The Kerby court’s discussion of its jurisdiction was favorably quoted in Fairness & amp; Acct. In Ins. Reform v. Greene, 180 Ariz. 582, 589, 886 P.2d 1338, 1345 (1994).

                                Our answer in that case applies equally to the current

                                       And, indeed, it seems to us that to hold the court
                                of equity could not intervene to prevent an election
                                being held, when every constitutional and statutory
                                provision setting forth what must be done before
                                holding a legal election had been violated, would
                                result in absurdity. It has been frequently
                                determined that if parties allow an election to
                                in violation of the law which prescribes the
                                manner in which it shall be held, they may not,
                                after the people have voted, then question the
                                procedure. If, then, they may not question the
                                procedure before the election because it is an
                                interference with the will of the people [or the
                                legislature], and may not question it afterwards
                                because it is then too late, when may the question
                                be raised? Such a holding would be a travesty
                                of the mandatory provisions of the constitution
                                and the acts of the legislature, for it would mean
                                 that they cannot be questioned at all.

                                 We think, therefore, both on sound reason and
                                 upon the unanimous decisions of our own court,
                                 that when it appears affirmatively that the
                                 constitutional and statutory rules in regard to the
                                 manner in which initiative and referendum
                                 petitions should be submitted have been so far
                                 that there has been no substantial
                                 compliance therewith, that the courts have
                                 jurisdiction to enjoin the election at the suit of an
                                 interested citizen. (emphasis in original)

P 31.           In Griffin v. Buzard, 86 Ariz. 166, 173, 342 P.2d 201, 208 (1959), the Arizona Supreme Court stated that “the courts must be alert to preserving the purity of elections and its doors must not be closed to hearing charges of deception and fraud that in any way impede the exercise of a free elective franchise.”

P 32.          The Libertarian Party had alleged in its counterclaim that the 2006 Special Election had been tampered with and attached an affidavit of Zbigniew Osmolski that he had been personally told by the Pima County computer operator that he had “fixed the RTA, or Regional Transportation Authority Election, on the instructions of his bosses and he did what he was told to do.” C.I. 36. The complaint requested as relief that the court conduct a hearing and afterward issue an injunction to prevent a reoccurrence.

P 33.         The recent case of Chavez v. Brewer, 222 Ariz. 309, 214 P.3d 397 (App. 1 2009) discusses several Arizona constitutional provisions, including our requirement in Article 2, Section 21, that “elections shall be free and equal.” The court concluded that Arizona’s constitutional right to a “free and equal” election is implicated when votes are not properly counted. Supra, p. 320. 

                                   We further conclude that appellants may be  
                                   entitled to injunctive and/or mandamus relief  
                                   if they can establish that a significant number  
                                   of votes cast on the Diebold or Sequoia DRE  
                                   machines will not be properly recorded or
                                   counted. Supra, p. 320.

P 34.          It is definitional that a “rigged or fixed” election is one where each vote is not properly recorded or counted.

P 35.        In its refusal to accept jurisdiction, the court ruled precisely contrary to Grifffin v. Buzard, supra, and Chavez v. Brewer, supra, and closed its doors to hearing charges of fraud that could repeatedly in the future impede the exercise of a free elective franchise. 

                     3.         An Impossible Remedy Can Never Be An 
                                 Adequate Remedy.

P 36.         The trial court ruled that: “Because the elections statutes provide a remedy for the cross-claimants’ allegations, their claim is subject to the jurisdictional time limits of A.R.S. §16-673.” Because of that identified “remedy,” the trial court declined to exercise its equitable jurisdiction as “the complainant has a plain, speedy, and adequate remedy at law.” C.I. 64.

P 37.          As an initial matter, the Libertarian Party is not contesting the election. They do not challenge A.R.S. §16-673, nor do they challenge that the court must follow that statute. They seek no remedy for that election. The remedy sought is for prospective relief. Prospective relief is required, because the Pima County election division can fraudulently rig every county election without detection or challenge.

P 38.       Attached to the Answer and Second Amended Cross-Claim of Pima County Committee of Libertarian Party was an affidavit of Zbigniew Osmolski, who had been told many months after the Special Election by the county election computer operator Bryan Crane that “he fixed the RTA, or Regional Transportation Authority election, on the instructions of his bosses and he did what he was told to do.” C.I. 36. The fear that he might be told to fix the next election by his bosses demonstrates the basis of the Libertarian party’s claim.

P 39.         It is the validity of all future elections that is at risk. A.R.S. §16-673 requires that all “election contests” be filed within five (5) days after completion of the canvass of the election and declaration of the result thereof. The written contest requires a complaint filed in court that sets forth “the particular grounds of the contest.” The contestant has the burden of showing that sufficient illegal votes were cast to change the result, and of showing for whom or for what they were cast. Morgan v. Board of Supervisors, 67 Ariz. 133, 143, 192 P.2d 236, 246 (1948).

P 40.          Pima County uses a computer system called “GEMS” sold by the Diebold Company. Precinct cast ballots are counted at the precinct by an optical scan device that tallies and records the votes on each ballot cast by “reading” whether marks have been made at particular places on the ballots such as oval “bubbles” being filled in by black markers. The precinct cast ballots may not be thereafter counted. The vote tally for each precinct is downloaded from the “memory card” that is contained in each precinct optical scanner device into GEMS, the central count computer program.

P 41.          Unfortunately, the “memory cards” that record precinct votes can be programmed by a “cropscanner™” device to produce false results. The Pima County election division owns a “cropscanner” device, and Pima County’s computer operator is highly skilled in the use of that “hack tool” by his own admission in trial testimony in Democratic Party of Pima County v. Pima County Board of Supervisors, Pima County Cause No. C20072073. During court testimony in that “database” lawsuit, Pima County election computer operator Bryan Crane testified that he practiced using Pima County’s “cropscanner” to alter vote counting instructions in precinct memory cards. In Crane’s opinion, “any person with computer knowledge wouldn’t have a problem with it.” C.I. 66 (p. 10 and Exhibit B).

                               (a)      It Is Easy To Cheat Using Pima County’s 
                                          Election Computer.

P 42.         The claim of appellants is that Pima County’s sole computer election employee rigged the Special Election computer system so that the reported outcome matched the desire of his employer. As astonishing as that claim may appear, the Pima County Democratic Party offered extensive evidence in its pleading, “ Democratic Party of Pima County’s Supplemental Memorandum, Declaration of Experts and Exhibits.” C.I. 60.
P 43.          During a lawsuit concerning the Pima County election computer database filed by the Pima County Democratic Party pursuant to Arizona’s public record laws, the county’s defense was based on the ease of cheating. Democratic Party of Pima County v. Board of Supervisors, Pima County Cause No. C20072073. Chief Pima County Civil Deputy Attorney Christopher Straub explained in his opening statement to the court how easy it is to cheat. C.I. 66 (p. 9).
                                   Because it can be easily manipulated, the bottom 
                                   line is in this whole thing is we’re only going to 
                                   catch stupid people, all right, because one could 
                                   also alter the audit logs. One could do anything.

P 44.           An affidavit from David Jefferson, a nationally known and recognized expert on computers and election systems, together with a California Secretary of State study, was filed with the court. C.I. 60 (p.3 and Exhibit 3). Dr. Jefferson said the computer system in use in Pima County is hopelessly inadequate.

                                   15. As a preamble, it is my professional opinion  
                                   that the GEMS election management system (and  
                                   also similar products from competing vendors) are 
                                   full of security vulnerabilities of all kinds. The security  
                                   mechanisms that are there are generally incorrectly  
                                   implemented, or seriously incomplete, or easily  
                                   circumvented, and in general hopelessly inadequate  
                                   to prevent manipulation of ballot records or vote  
                                   totals by anyone with even a very short period of  
                                   access to the system. The opinion is based on two  
                                   very thorough reviews of those systems published  
                                   this year. The first was done by world class  
                                   computer scientists led by computer science Prof.  
                                   David Wagner of U.C. Berkeley and Prof. Matt  
                                   Bishop of U.C. Davis and published a few months 
                                  ago by California Secretary of State Debra Bowen  
                                  in her “Top to Bottom Review of California Voting  

                                (b)      Election Challenges Must Be Filed Within 
                                           Five Days and Allege Details Why the 
                                           Outcome Would Have Been Different.

P 45.           The exclusive means of contesting any election in Arizona is set out in A.R.S. §16-671, et seq. A.R.S. §16-673 requires that an elector file a challenge “within five days after the completion of the canvass ...” Furthermore, the election contest requires a complaint that sets forth “the particular grounds of the contest.”

P 46.          The Libertarian Party is not contesting the election, nor could they, as the time limit is long passed. The prayer for relief relates only to securing the purity of elections in the future.

P 47.       The critical issue is that no computerized election can ever be challenged in five days.
                                (c)     Election Cheating By Computer Can 
                                          Almost Never Be Detected Within 
                                          Five (5) Days.

P 48.         Arizona Attorney General Terry Goddard hired a computer company called iBeta to examine one small portion of the Special Election computer database. The company’s report noted the difficulty of such an examination because of the flaws in the computer’s instructions. C.I. 60 (p. 2).

                                   During testing it was discovered that the GEMS
                                   software exhibits fundamental security flaws that 
                                   make definitive validation of data impossible due 
                                   to the ease of data and log manipulation.

P 49 .          The Arizona Secretary of State’s office testified in the “database” lawsuit, through its State Election Director Joseph Kanefield, concerning that conclusion by iBeta that “... this is no secret. These issues have been known by not only our office but election offices all over the country.” C.I. 60 (p. 2). Dr. Thomas W. Ryan, Ph.D., has examined the Special Election electronic database. His declaration was attached as Exhibit 5 to C.I. 60. Dr. Ryan has spent the past five years examining election integrity issues on behalf of the Democratic Party. He concluded that: 

                                        13. It is well established that the GEMS  
                                 databases are vulnerable to software errors and can  
                                 be manipulated using simple software applications  
                                 or scripts. 

                                        15. Detection of fraudulent manipulation or  
                                 software errors in a GEMS database would most  
                                 likely be difficult, if not impossible, depending on  
                                 the nature of the manipulation or error. 

                                        16. Detection of errors, if possible, would require 
                                a thorough analysis of the sequence of database  
                                “snapshots”, looking for anomalous data either within  
                                a single database or, more likely, among the various  

                                        17. Software tools are under development to  
                                detect logical inconsistencies but these tools are not  
                                yet fully automated and will probably never address  
                                all possible forms of manipulation or bugs. 

                                        18. Unless the manipulation or software errors are  
                                blatantly obvious, it will take several weeks to fully  
                                analyze the database set for an election. 

                                         19. Discovery of manipulation or other errors in  
                                election databases would almost certainly take  
                                longer than the five-day contest period allowed  
                                under A.R.S. §16-673.

P 50.          Michael A. Duniho is a “master computer scientist” retired to Tucson from a career with the National Security Agency, where he was one of fifty master programmers. His declaration is attached as Exhibit 6 to C.I. 60. He has worked with the Democratic Party’s Election Integrity Committee since 2006 and was appointed by Supervisor Ray Carroll to the Pima County Election Integrity Committee where he serves along with Dr. Thomas Ryan, another appointed member.

P 51.           Mr. Duniho confirms that manipulation of GEMS is generally undetectable:

                                       It is important to understand that the manipulation
                                       of the GEMS database is generally undetectable
                                       without comparing the database data with the
                                       actual ballots and poll records. Such a
                                       comparison takes not a few days but rather a year
                                       or more of intense records with every paper
                                       information record.

P 52.          The trial court noted that “equity may not be invoked when the complainant has a plain, speedy, and adequate remedy at law.” Appellant agrees that is the law.

P 53.         The same phrase can be found in numerous areas of our laws, such as writs of prohibition, certiorari or mandamus. Johnson v. Betts, 21 Ariz. 365, 371-372, 188 P. 271, 274 (1920) (It is not enough that there existed, or may have existed, a concurrent remedy open to appellant, unless it was equally as plain, speedy, and adequate as the remedy by prohibition.) Crouch v. City of Tucson, 145 Ariz. 65, 67, 699 P.2d 1296, 1298 (App. 1984) (A writ of mandamus is extraordinary relief available when there is not a plain, adequate and speedy remedy at law.) See A.R.S. §12-2021 relating to mandamus or A.R.S. §12-2001 concerning certiorari. The Arizona Supreme Court in Genda v. Superior Court, County of Pima, 103 Ariz. 240, 242, 439 P.2d 811, 813 (1968) commented on the writ of prohibition: “a writ of prohibition is appropriate if the other remedies are not equally plain, speedy and adequate ... . The guiding principle must be our obligation to see that essential justice is done.”

P 54.         The court fundamentally erred when it concluded that there is an adequate remedy “because the elections statutes provide a remedy for the cross-claimants’ allegations.” That alleged remedy is impossible, however, and would be so even if this had been an election challenge. The word “impossible” is not chosen lightly. It is not merely difficult or unwieldy or burdensome, but absolutely impossible. The remedy the Libertarian Party seeks is prospective and is not addressed in any statute. By refusing jurisdiction, the court is shutting the door on any remedy.

P 55.         As a practical matter it is extremely difficult to obtain a copy of computerized election data. Prior to the 2008 general election, the Arizona State Democratic Party mailed requests to twelve Arizona counties requesting copies of their public record computer data. Only six counties chose to respond to the request at all, and not one county provided data within the five-day window. A declaration from the State Democratic Party Election Integrity Committee Chair, Ted Downing, listed the response dates from the six counties that chose to honor a public record request from a major state party. C.I. 66 (Ex. A).

P 56.          For sake of further analysis, let us assume that someone could actually obtain, in a timely manner, the requested public record computer data. That data would not likely reveal any information that could be used to show that the outcome would have been different and not merely that there were “problems” or “glitches.”

P 57.         All of the experts are unanimous that examining the computer data itself cannot provide specific information that complies with A.R.S. §16-673. There are simply too many ways to cheat and cover up the crime. Such frauds are possible, among other reasons, because the audit log that might otherwise record activities can be edited and specific activities simply erased. C.I. 60 (Ex. 2, p. 60). Data can be copied and altered off-line and re-inserted into the system through a process known as “forking.”

P 58.       The “memory cards” that record precinct votes can be programmed by a “crop scanner™” device to produce false results. Pima County owns such a device and Pima County’s computer operator is highly skilled in the use of that “hack tool” by his own admission. C.I. 66 (Ex. B, P. 49).

P 59.         The bottom line is that A.R.S. §16-673 can never be a remedy for a computer election challenge. The Libertarian party, of course, is not challenging the election. It is not requesting that the election be “aborted,” but that “protection” be ordered for future elections. 

                      B.     The Trial Court Erred By Not Permitting the 
                               Citation of Additional Constitutional Authority 
                               Because They Weren’t “New” and Could Been 
                               Found Earlier.

P 60.         The Libertarian Party cited in its cross-claim Article 2 §§ 2, 3, 21, 33 of the Constitution of the State of Arizona and Article 1 §4 of the Constitution of the United States. The Democratic Party filed a Supplemental Citation of Authorities on January 6, 2009, before oral argument and the court’s decision that included additional constitutional provisions and Arizona cases. The Libertarian Party joined in the request.

P 61.         During argument on the Motion to Dismiss, Pima County orally requested that this court not consider the Democratic Party’s supplemental citations of authorities which the county characterized as: “for the most part, cites to Arizona constitutional provisions.” Therefore, the trial court was asked by Pima County to ignore important portions of Arizona’s Constitution solely because the County claims those provisions were not “new.”

P 62.         The court agreed that it would not consider the supplemental authorities because they were not “new” and “could have been” cited to the court earlier. There is, however, no such requirement in our laws. Neither the County nor the court cited any authority for such an alleged rule. Not only is there not such a rule, but there could not be such a rule, as it would be contrary to how our courts arrive at decisions. Litigants frequently become aware of cases the court should know about. Sometimes litigants, at various points of time, become aware of court rules, statutes or constitutional provisions that are important or even controlling to a decision. It is obvious that a “new” requirement would prevent the Court from reviewing such information.

P 63.         Rule 17, Rules of Civil Appellate Procedure, is a specific rule that is informative on the issue of supplemental authorities. The appellate courts welcome additional authority at any time before decision. Those welcomed authorities are those that are “pertinent” and “come to the attention of a party after the party’s brief has been filed, or after oral argument.” There is not a “new” requirement. If a pertinent authority from any time, period, or place “comes to the attention of a party” it may be cited to the court. Furthermore, parties should bring those additional authorities to the court’s attention.

P 64.          Our ethical rules specifically require that the court be informed by counsel of pertinent legal authority even when it is contrary to the position of the client and not disclosed by opposing counsel. See E.R. 3.3 Candor Toward the Tribunal. If the county had been aware of those authorities they should have cited them to the court.

P 65.        The court’s erroneous ruling on this point is no small matter. The supplemental authorities included Ariz. Const., Art. 7, Sec. 12, that requires Arizona law “to secure the purity of elections and guard against abuses of the elective franchise” and Ariz. Const., Art.2, Sec. 21, that requires “all elections” to be “free and equal, and no power, civil, or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” These constitutional requirements cannot simply be ignored because they are not “new.”

P 66.       The additional authorities cited informed the trial court, without argument, of the leading Arizona cases that explain the required tests and theory of Arizona’s separation of powers doctrine. The trial court was required to follow those cases whether cited or not. The Democratic Party cited Parker ex rel Parker v. ALA, 204 Ariz. 42, 47, 59 P.3d 806, 811 (2002, Div.1), In Re San Carlos Apache Tribe v. The Superior Court of Arizona, In and For the County of Maricopa, 193 Ariz. 195, 211, 972 P.2d 179, 195 (1999), and J.W. Hancock Enterprises v. Ariz. St. Reg., 142 Ariz. 400, 405, 690 P.2d 119, 124 (App. 1984) as a convenience to the court since separation of power issues had been raised in this case by the County and Beth Ford.

P 67.          Morgan v. Board of Supervisors, 67 Ariz. 133, 140, 192 P.2d 236, 243 (1948) noted that the general presumption of law is that provisions of state constitutions are self-executing. The Morgan case plaintiff sought an injunction to prevent the sale of bonds that would violate constitutional limitations. The court referred to property rights in terms that would apply equally to voting rights.
                                 If the bonds in the instant case are issued and sold  
                                 unquestionably the property rights of the appellant  
                                 and other taxpayers similarly situated would be  
                                 involved; hence, appellant has the right to bring an  
                                 action seeking injunctive relief on the ground that  
                                 the constitutional limitation of indebtedness was 
                                 exceeded. Supra. P.136.

P 68.       The Morgan court further discussed its equity jurisdiction in an election case.
                                 What we believe to be the correct rule to follow 
                                 in a situation of the kind we are now confronted  
                                 with is stated in the case of Village of Morgan  
                                 Park v. City of Chicago, 255 Ill. 190, 99 N.E.  
                                 388, 389:

                                 “* * * While a court of equity will not take  
                                 jurisdiction merely to determine the legality of an  
                                 election, it will exercise its jurisdiction to protect  
                                 property rights from unlawful interference, although  
                                 the determination of the question whether the  
                                 interference is unlawful may depend upon the  
                                 question whether an election was legal. * * *"
                                 Id., p. 139.

P 69.          The appellant is not seeking to determine the legality of the 2006 Special Election, but is seeking to protect the franchise from unlawful interference.

P 70.           If, as Morgan teaches, our Arizona courts will take jurisdiction of an election matter “to protect property rights,” it must surely take jurisdiction to protect democracy itself. If elections may be rigged repeatedly and never challenged, there would be no democracy. 

                     C.       The Violation of Criminal Laws Is an Argument 
                                Favoring Jurisdiction, Not a Fact that Defeats 

P 71.         Despite the Libertarian Party seeking only prospective relief, the trial court concluded that “it can only be a request for this court to conduct an investigation into criminal conduct,” and, therefore, the executive branch only had jurisdiction. The court is fundamentally wrong. Whether particular conduct violates criminal statutes does not defeat civil lawsuits or remedies. The law is no different in a election context.

P 72.         The court in Griffin v. Buzard, 86 Ariz. 166, 173, 342 P.2d 201, 208 (1959) noted that such allegations are not uncommon in civil cases.

                                 It must be remembered that this election contest  
                                 is not a criminal action against a contestee and the  
                                 high degree of proof required to convict is not  
                                 essential. It is not uncommon find allegations in  
                                 civil action complaints that charge defendants  
                                  with a violation of a criminal statute.

P 73.          Importantly, if allegations of crimes could not be made in election cases, there would be few matters that could be litigated, as there are multiple penal provisions related to elections. See A.R.S. §16-100 (to 16-102). For example, A.R.S. §16-1010 makes it a felony to violate any duty related to elections.
                                 A person charged with performance of any duty  
                                 under any law relating to elections who knowingly  
                                refuses to perform such duty, or who, in his official  
                                capacity, knowingly acts in violation of any provision  
                                of such law, is guilty of a class 6 felony unless a  
                                different punishment for such act or omission is  
                                prescribed by law.

P 74.          The trial court erred in concluding that an allegation of criminal conduct means that only a prosecutor can consider it. The relief requested by the Libertarian Party is squarely within the court’s jurisdiction. The rights of the voters and the appellant political party are of the highest importance. 

Request for Attorney’s Fees
P 75.          Appellant requests attorney’s fees on appeal pursuant to the private attorney general doctrine. Under the private attorney general doctrine, this court may, in its discretion, “award attorney’s fees to a party who has vindicated a right that: (1) benefits a large number of people; (2) requires private enforcement; and (3) is of societal importance.” Arnold v. Ariz. Dep’t of Health Svs., 160 Ariz. 593, 609, 775 P.2d 521, 537 (1989). As stated in Burdick v. Tabushi, 504 U.S. 428, 433, “It is beyond cavil that voting is of the most fundamental significance under our constitutional structure.” 

P 76.        The Libertarian Party and all of Pima County’s hundred of thousands of electors do not have any statutory remedy to prevent the repeated fraudulent rigging of elections. When there is “not an adequate remedy” at law, a court of equity should accept jurisdiction to protect the people’s franchise as guaranteed to them in Arizona’s constitution. The counterclaim does state a cause of action that may be considered by a court of equity. This court should reverse the ruling of the trial court and remand it for further proceedings.

                RESPECTFULLY SUBMITTED this 25th day of March , 2010.

                                                ELLINWOOD, FRANCIS &
                                                PLOWMAN, LLP

                                                By: /s/ Ralph E. Ellinwood
                                                Ralph E. Ellinwood
                                                Attorney for Defendant/Appellant

Certificate of Service

Pursuant to Rule 15(b) of the Rules of Civil Appellate Procedure, a copy of the Appellant's Opening Brief have been served by e-mail on this 25th  day of March, 2010, on:

John C. Richardson                                                  Thomas E. Benavidez
DeConcini McDonald Yetwin & Lacy, P.C.              Benavidez Law Group
2525 E. Broadway Blvd., Ste. 200                      7440 N. Oracle Rd., Bldg. 7
Tucson, Arizona 85716                                            Tucson, Arizona 85704
Attorneys for Beth Ford                                            Attorneys for Regional
Plaintiff/Appellee                                                       Transportation Authority

Ronna Fickbohm                                            Sean E. Brearcliffe
Sloucher, Hudgins, Struse and Freund, P.L.C.  Rusing & Lopez, PLLC
6750 North Oracle Road                                 6262 N. Swan Road, Ste. 200
Tucson, Arizona   85704-5618                        Tucson, Arizona 85718
Attorneys for Pima County                             Attorneys for Republican Party
Defendant/Appellee                                        Pima County

/s/ Ralph E. Ellinwood                        
Ralph E. Ellinwood
Attorney for Defendant/Appellant 

Certificate of Compliance

Pursuant to ARCAP 14, I certify that the attached brief uses proportionately spaced type of 14 points or more, is double-spaced using a roman font and contains 6,225   words.  I have relied on the word count of the processing system used to prepare the brief.

Dated this   25th   day of   March  , 2010.

 /s/ Ralph E. Ellinwood                                          Ralph E. Ellinwood
Attorney for Defendant/Appellant